Citation Nr: 0713650
Decision Date: 05/09/07 Archive Date: 05/17/07
DOCKET NO. 04-05 323 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
back disorder.
(A motion for revision or reversal of a July 1996 Board
decision to deny service connection for a low back disorder
on the basis of clear and unmistakable error (CUE) is
addressed in a separate Board decision.)
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
B. Buck, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1952 to July
1956.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2003 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
New Orleans, Louisiana, which declined to reopen the
veteran's previously denied claim of entitlement to service
connection.
FINDINGS OF FACT
1. Service connection was denied for a low back disorder in
July 1985. The veteran did not perfect an appeal of that
decision.
2. The last final disallowance of the claim was by Board
decision in July 1996.
3. Evidence received since July 1996 does not relate to an
unestablished fact necessary to substantiate the claim for
service connection; instead, it is cumulative and redundant
of evidence previously submitted.
CONCLUSIONS OF LAW
1. The July 1985 RO decision is final. 38 U.S.C.A.
§ 4005(c) (1982); 38 C.F.R. §§ 3.160, 19.129, 19.192 (1985).
2. The July 1996 Board decision is the last final
disallowance. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R.
§ 20.1100 (1996).
3. The evidence added to the record since the last final
disallowance is not new and material; the claim is not
reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R.
§ 3.156(a) (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
In correspondence dated in October 2002, the agency of
original jurisdiction (AOJ) satisfied its duty to notify the
veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R.
§ 3.159(b) (2006). Specifically, the AOJ notified the
veteran of information and evidence necessary to reopen the
previously denied claim for service connection. It
specifically listed why the veteran's claim had been denied,
and what type of evidence would be necessary to reopen it.
The veteran replied with the name of a doctor who had treated
him directly after service. After researching the claim, the
RO found in January 2003 that the veteran had previously
reported treatment from this doctor in connection with his
original claim, and further that the doctor was deceased, and
his records were unavailable. In July 2003, VA notified the
veteran of the information and evidence necessary to
substantiate his underlying service connection claim. It
explained about the information and evidence that VA would
seek to provide and the information and evidence that the
veteran was expected to provide. This information was
provided prior to the denial of the veteran's claim.
While the veteran was not instructed to "submit any evidence
in his possession that pertains to the claim," he was
advised periodically during the long course of the appeal to
notify VA of any information or evidence in support of his
claim that he wished VA to retrieve for him. Although such
notices were delivered after the initial denial of the claim,
the AOJ subsequently readjudicated the claim based on all the
evidence in March 2004, without taint from prior
adjudications. Thus, the veteran has been able to
participate effectively in the processing of his claim and
the timing of the notices did not affect the essential
fairness of the decision.
VA has done everything reasonably possible to assist the
veteran with respect to his claim for benefits in accordance
with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c)
(2006). In a claim to reopen, VA's responsibility extends to
requesting evidence from any new source identified by the
claimant, and if that evidence is then not new and material,
the claim is not reopened, and VA's duties have been
fulfilled. VA does not have a duty to provide the veteran a
VA examination or seek a medical opinion if the claim is not
reopened. 38 U.S.C.
§ 5103A(f) (West 2002); 38 C.F.R. § 3.159(c)(4)(C)(iii)
(2005). As discussed above, the RO complied with VA's
notification requirements and informed the veteran of the
information and evidence needed to substantiate his claim.
Since no new and material evidence has been submitted, an
exam and/or opinion is not required.
New & Material Evidence
The veteran seeks service connection for his current low back
disorder that he contends is the result of an in-service
accident in which he was crushed between two tractors. By
rating decision dated in July 1985, the RO denied the
veteran's claim on the basis that his service medical records
did not show incurrence of a back injury, and that his
discharge examination was negative for history or current
complaints of a back injury. Further, the RO found that
degenerative disc disease was not shown within one year of
the veteran's separation. The veteran did not perfect an
appeal with respect to this decision. In October 1985, the
RO reconsidered the decision, as service medical records not
previously before the agency confirmed the in-service
accident. The denial was continued, however, as the back
injury in service was considered acute and transitory and not
related to the current diagnosis.
The veteran attempted to reopen his claim in March 1992, by
submitting additional medical evidence. The RO reopened and
denied the claim in October 1993, and the veteran perfected
an appeal. The Board denied the veteran's appeal by decision
dated in July 1996. A motion for reconsideration was denied
in May 1998. The Court of Veterans Appeals affirmed the
Board's 1996 denial in November 1997.
Applicable law provides that the July 1985 RO decision that
was unappealed is final. 38 C.F.R. §§ 3.160, 19.129, 19.192
(1985). The July 1996 Board decision is also final.
38 C.F.R. §§ 3.156, 20.1100 (1996); see also Jackson v.
Nicholson, 449 F.3d 1204 (2006) (holding that "final
appellate decision" as used in 38 C.F.R. § 3.156(b) means a
decision by the Board of Veterans Appeals, not a decision by
the Court). Once a decision becomes final, new and material
evidence is required to reopen the claim which was denied.
38 U.S.C.A. § 5108 (West 2002).
"New" evidence is existing evidence not previously
submitted to agency decisionmakers. "Material" evidence is
existing evidence that, by itself or when considered with
previous evidence of record, relates to an unestablished fact
necessary to substantiate the claim. "New and material
evidence" can neither be cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim. See 38
C.F.R. § 3.156(a) (2006).
VA is required to review for newness and materiality only the
evidence submitted by a claimant since the last final
disallowance of a claim on any basis in order to determine
whether a claim should be reopened and readjudicated on the
merits. See Evans v. Brown, 9 Vet. App. 273, 283 (1996).
This means that only evidence received since the July 1996
Board denial will be reviewed.
Since the Board's denial, the veteran has submitted his own
lay statements, which outline his arguments and conclude
that there is a medical nexus between his current disability
and his service. He also has submitted medical evidence, to
include copies of service medical records and post-service
records dating from 1988. He has submitted copies of VA
regulations and copies of previous correspondence from VA
regarding his claim. Additionally, he has added news
articles to the claims file, describing the VA claims
process.
None of these items meets the criteria for new and material
evidence. The veteran's arguments, though they have changed
over the years, do not constitute new evidence. See Untalan
v. Nicholson, 20 Vet. App. 467 (2006) (holding that new
arguments based on evidence already of record at time of
previous decision do not constitute presentation of new
evidence). Nor are his own statements finding a causative
link between his current disability and his service
considered to be material. Although evidence proffered by
the claimant to reopen his claim is presumed credible for the
limited purpose of ascertaining its materiality, there is no
presumption of competency. Unless there is a showing that
the veteran is qualified through specialized education,
training, or experience to offer medical diagnoses,
statements, or opinions, such statements are not credible,
and therefore not material. See Espiritu v. Derwinski, 2
Vet. App. 492, 494-95 (1992).
The medical evidence that the veteran submitted is
duplicative, and by its very nature, is not new and material
as it is cumulative and redundant of evidence already of
record prior to the last final disallowance in 1996. The
same medical records that the veteran submitted in March 1998
appear earlier in the file, date stamped in March 1992. The
veteran's service medical records have been of record since
October 1985.
The copies of VA regulations and of prior correspondence from
VA to the veteran are not material to reopening his claim.
Specifically, these records do not establish that the veteran
has a current disability that is medically related to his
service, or that degenerative changes were established within
one year of separation. The same is true of the news
articles that the veteran has presented. While relevant to
claims generally, these pieces of evidence are not material
to the reason that the veteran's claim was originally denied.
Therefore, they are not material and cannot serve to reopen
the veteran's claim.
In sum, the veteran has not submitted new and material
evidence sufficient to reopen his previously denied claim.
As the preponderance of the evidence is against the veteran's
claim, the benefit of the doubt provision does not apply.
His application to reopen must be denied.
ORDER
New and material evidence having not been submitted, the
application to reopen the claim of entitlement to service
connection for a back disorder is denied.
____________________________________________
J. E. Day
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs